An application by ‘Anisi Kulufeinga Bloomfield for leave to appeal against his extradition to Fiji under the Extradition Act was refused by Lord Chief Justice Whitten, in a ruling from the Supreme Court on 2 September.

On July 22, Bloomfield filed this notice of appeal against Hon Mr Justice Niu's decision that he be committed to be returned to Fiji to be tried on general dishonesty and theft, alleged to have been committed between 2011-2014.

Bloomfield on his grounds of appeal, sought to provide fresh evidence that the parties could not adduce during the time of trial at the Supreme Court in June.

This fresh evidence is a recent letter from th Prime Minister of Tonga dated July 1, 2020 revoking his earlier order of October 30, 2019 to proceed with his extradition to Fiji.

The second paragraph of the etter stated: "This notice of revocation shall give Mr. Bloomfield his right as a Tongan subject to remain in Tonga and not to be extradited to Fiji and I have order [sic]";

In addition, the notice of appeal requested that the appeal be determined without a hearing in open court in accordance with s.24 of the Court of Appeal Act.

The appeal was therefore based solely on the Prime Minister's letter of July 1, 2020 purportedly revoking his earlier authority to proceed.

However, the notice of appeal does not allege any error by Justice Niu in his determination of the appeal or application on the material then before him.

Fresh evidence by PM

The Chief Justice said, the matter was mentioned on August 5 and Bloomfield's counsel Mr Fili sought to have the appeal heard and determined in the upcoming second session of the Court of Appeal, starting September 21.

He said, in that regard on July 29, the Acting Registrar issued directions for all the appeals to be heard at the next session which included appellants' submissions to be filed by August 10, 2020 and respondents' submissions to be filed by August 24. Time therefore was of the essence, he said.

The Crown opposed the appeal and the application to adduce fresh evidence.

However, Crown added that on July 20 the Prime Minister issued a separate letter to the Attorney General in which he effectively revoked his letter of July 1 upon which the appellant relied in this appeal.

The letter was not produced that day but Crown contended that the effect of the Prime Minister's second letter is that his original authority to proceed remains in force.

In addition on July 24, the Attorney General's office provided a copy of the PM's second letter to Fili and invited him to attend a meeting which occurred on July 29.

Fili described the second letter as "suspicious" and that he intended to challenge its authenticity or validity on the basis that it was not given by the Prime Minister "of his own free will", meaning that he was undersome sort of duress.

He also mentioned intended reliance on principles of estoppel. However, he required time to considerthose matters further.

During oral submissions, Fili sought to develop his written contention that asthe second letter is not expressed as an 'Order' as provided for by s.19, it is only a 'notice' and therefore cannot have the effect of revoking the first letter.

The Crown stated, that it was not challenging the authenticity or validity of either letter but intended to rely on the Prime Minister's most recent letter, also as fresh evidence on the appeal.

Judgment 

On his many reasons for his judgment dated September 2, the Chief Justice said s.19 provides that any power to make an Order under the Act includes power to revoke or vary such an Order by a subsequent Order.

“In my opinion, both letters constitute an Order for the purposes of s.19 whether or not they actually used the word' order' or 'Order' in their texts.

“A further consideration on the question of leave to appeal is that Bloomfield's ultimate fate has not been determined by Justice Niu decision and that it in fact depends on the Prime Minister's exercise of discretion under s. 11 of the Act. 

“There is no indication in his affidavit that the Prime Minister has yet made that decision or when he is likely to do so. For those reasons, in my opinion, the prospects of success of the appeal are insufficient to warrant leave being granted,” he said.

"For those reasons, in my opinion, the prospects of success of the appeal are insufficient to warrant leave being granted."

He then refused Bloomfield's application for leave to appeal.